Opinion
Appeal from the District Court, Fifth Judicial District, County of San Joaquin.
Action on two promissory notes, one for $ 2,200, made October 1, 1862, payable one day after date, and the other for $ 152 50, made May 5, 1862, payable on demand. The notes were payable to L. P. Felton or order, and were indorsed to the plaintiff. The complaint averred that the defendant, on the 1st day of July, 1863, departed from the State of California, and did not return until November, 1868. The action was commenced March 28, 1870. The jury found a verdict for the plaintiff for the amount due on the second note, and judgment was entered accordingly. The plaintiff moved for a new trial, which was granted. The defendant appealed from the order granting a new trial.
[The report of this case on a former appeal, will be found in the 45 Cal. 544.]
COUNSEL
D. S. Terry and McKune & Welty, for the Appellant.
W. L. Dudley and J. H. Budd, for the Respondent.
OPINION
By the Court:
The appeal is taken from an order granting the plaintiff a new trial, on the ground that the evidence is insufficient to justify the verdict found in favor of the defendant as to the $ 2,200 note in suit. The defense pleaded to this note was two-fold--payment and want of consideration. As to the first defense--payment--it is not even claimed in argument by counsel for appellant that the evidence was not conflicting. As to the second defense--want of consideration--the evidence is plainly conflicting. The virtual admissions made by the defendant to Lardner are to the effect that the $ 2,200 note was not without consideration; the only defenses that he then claimed to have to the note were payment and the Statute of Limitations. The admissions, express in some instances and implied in others, made by the defendant in his written correspondence had with Felton, years after the giving of the $ 2,200 note, of themselves go far to contradict his evidence given at the trial as to the want of consideration. It is the settled rule that an order granting a new trial for insufficiency of evidence to support the verdict will not be disturbed here when the evidence is shown to be conflicting in its character.
Order affirmed. Remittitur forthwith.